Home SHIGERU UEDA, individually and as Trustee of the Shigeru Ueda Revocable Living Trust, and HISAKO UEDA, as Trustee of the Hisako Ueda Revocable Living Trust v. AYOUB MEHDIZADEH and MAHIN MEHDIZADEH

MISC 17-000339

AUGUST 25, 2020

ESSEX, ss.



Before the court are the following: (1) the respondents' Motion for Enlargement of Time to File Notice of Appeal (Motion for Enlargement), (2) the petitioners' Motion to Strike Untimely Notice of Appeal (Motion to Strike), (3) respondents' Motion for Stay of Distribution Pending Resolution of Appeal (Motion for Stay), and (4) the Commissioner's Revised Proposed Distribution Pursuant to Court's Memorandum and Order on Petitioners' Motion to Amend Decision and Order, Petitioners' Motion for Award of Attorney's Fees, and Commissioner's Proposed Distribution (Revised Proposed Distribution). The court decides the Motion for Enlargement, Motion to Strike, Motion for Stay, and Revised Proposed Distribution without hearing pursuant to Land Court Rule 6, addressing each in turn.

Motion for Enlargement and Motion to Strike

The court entered its Judgment on Complaint for Civil Contempt (Contempt Judgment) on May 1, 2020. Under the applicable orders of the Supreme Judicial Court in response to the COVID-19 pandemic, the running of the 30-day time period for filing a notice of appeal of the Contempt Judgment was stayed until July 1, 2020. Thus, the date for filing a notice of appeal of the Contempt Judgment was July 31, 2020. The respondents' counsel prepared a notice of appeal dated July 30, 2020, and mailed the notice of appeal to the Land Court on that date. Counsel served the notice of appeal on counsel for the petitioners by email on July 30, 2020, and counsel for the petitioners acknowledges receiving the email. Counsel for the respondents explains that he was uncertain as how to file the notice of appeal with the Land Court, as there appears to be no mechanism for electronic filing. As the petitioners point out, various orders of the Land Court during the COVID-19 pandemic permit filing by email.

The time for filing a notice of appeal may be extended "[u]pon a showing of excusable neglect." Mass. R. App. P. 4(c). In this time of COVID-19 and the disruption in court procedures it has wrought, counsel's uncertainty about how to file the notice of appeal is understandable, even in light of the Land Court's instructions. Counsel made a good-faith effort to file the notice of appeal on time, mailing it before the 30-day deadline. Delivery of mail to the court and docketing of mailed notices has had some delays because of the limited staffing in response to the pandemic. In light of these considerations, the arrival of the notice of appeal one business day late constitutes "excusable neglect." Id. The Motion for Enlargement is ALLOWED and the Motion to Strike is DENIED.

Motion for Stay

The respondents have moved to stay distribution of the sale proceeds while their appeal of the Contempt Judgment is pending. The respondents are correct that the petitioners should not be paid the damages assessed on the Contempt Judgment while the appeal is pending. That amount is $7,817.50. The court already provided in its Order to Commissioner on Distribution of May 1, 2020 for the Commissioner to withhold that amount pending the Contempt Judgment becoming final, and the Revised Proposed Distribution reflects that withholding.

The remainder of the Revised Proposed Distribution concerns funds that have nothing to do with the Contempt Judgment. There are no grounds for withholding distribution of those funds. The Motion for Stay is DENIED.

Revised Proposed Distribution

The Revised Proposed Distribution is reasonable and consistent with the court's various orders. The petitioners assent to the Revised Proposed Distribution, and the respondents' only objection was to move to stay distribution, the motion denied above. The court will approve the Revised Proposed Distribution with one modification. Appeal of the Contempt Judgment may take up to a year to resolve. There is no reason to require the Commissioner to hold the $7,817.50 in contempt damages for that extended period, leaving this partition action open for that time. The better course is to require one of the attorneys for the petitioners and respondents, or some other escrow agent, to hold those funds in escrow. This will allow the Commissioner to make full distribution and file his final accounting, and allow the court to enter a judgment approving the accounting and rendering the partition final.

The Revised Proposed Distribution is MODIFIED to provide that counsel for the parties shall confer and, within ten days of the date of this Memorandum and Order, instruct the Commissioner as to who shall act as escrow agent. If the parties cannot agree within this time period, they shall so inform the court and the court will designate an escrow agent. Upon the choice or designation of an escrow agent, the Commissioner shall make distribution of the proceeds as set forth in the Revised Proposed Distribution, except that the Commissioner shall distribute the amount of $7,817.50 to the escrow agent, who shall hold those funds in escrow until the Contempt Judgment is either final or reversed.

As so modified, the Revised Proposed Distribution is APPROVED. The Commissioner shall file his final accounting within ten days after making distribution. The parties shall have ten days after the filing of the final accounting to file objections, after which the court shall enter judgment or take such other action as deemed necessary.

So Ordered.